Anil Sagun Ghadi vs Anil Chopdekar

U.V. Bakre, J.—Heard the learned Counsel for the parties.

This appeal arises out of the judgment and order dated 02/04/2008 passed by Motor Accident Claims Tribunal at Margao (M.A.C.T., for short) in Claim Petition No. 66/2007. The appellant was the applicant in the said Claim Petition.

The applicant had filed the said Claim Petition under Section 166 of the Motor Vehicles Act, 1988 (M. V. Act, for short) for compensation of Rs. 2,59,000/-on account of injuries sustained by him in a Motor Vehicular Accident.

Case of the applicant, in short, was as under :

On 23/10/2006, the applicant was rider of the motorcycle bearing registration no. GA-02/Q-2672 on which his father Shri Sagun Ghadi was sitting as pillion rider. They had started from their residence at Shigao. The applicant had to go to M.R.F. Factory Usgao, whereas father was to alight at Kodli-Tisk. At about 15.30 hours at a place known as Vagona-Kirlapal on the road between Dabal to Sanvordem, the truck bearing registration no. GA-02/T-6672 driven rashly and negligently in a fast speed dashed against the oncoming tipper truck bearing registration no. GA-02/T-6334 which was also driven rashly and negligently and at a fast speed and, thereafter, the truck bearing no. GA-02/T-6672 dashed against the motorcycle driven by the applicant. As a result of the dash, the applicant and his father fell down. The father of the applicant died as a result of the injuries sustained, whereas the applicant sustained grade I compound fracture, lower 1/3rd , right tibia/ fibula.

The applicant claimed Rs. 20,000/-towards special diet and attendant; Rs. 5,000/-towards transport and conveyance; Rs. 1,50,000/-towards permanent disability; Rs. 10,000/-towards future expenses to be incurred for routine check up, treatment, medicines, transport and for another surgery; Rs. 20,000/-towards mental pain and sufferings and Rs. 54,000/-towards total loss of income for six months. Thus, the total compensation claimed was Rs. 2,59,000/-.

Respondents no. 1 and 2 were respectively the driver and owner of the truck bearing no. GA-02/T-6672 which vehicle was insured with respondent no. 3. The respondents no. 4 and 5 were respectively the driver and owner of the truck bearing registration no. GA-02/T-6334 which was insured with respondent no. 6. The respondents no. 1 and 2 did not file written statement.

The respondent no. 3, in its written statement, denied the case of the applicant and alleged that the applicant was driving the motorcycle in a rash and negligent manner without paying proper attention to the traffic as a result of which the accident occurred. The respondent no.3 further added that its liability to pay compensation was limited to the terms and conditions of policy whereunder the said truck bearing no. GA-02/T-6672, driven by the respondent no. 1 was insured. It was also pleaded that the amount of compensation claimed by the applicant was exorbitant.

The respondents no. 4 and 5 and respondent no. 6, in their written statements had also denied the case of the applicant and had alleged that exorbitant compensation was claimed by the applicant.

Issues were framed as per rival contentions of the parties. The applicant examined himself as AW1, Shri Satyawan Vithoba Gaonkar, one of the panch witnesses for the panchanama and the scene of accident as AW2, Shri Raghu Gaonkar as AW3, Dr. Shivanand Bandekar as AW4 and Shri Sharad Chodnekar as AW5. None of the respondents examined any witness.

Upon consideration of the entire evidence on record, the learned M.A.C.T., vide the impugned Judgment and Award, held that the accident occurred due to rash or negligent driving only of the truck no. GA-02/T-6672 and that the applicant sustained injuries in the said accident. The M.A.C.T. further held that the respondents no. 2 and 3 jointly and/or severally are liable to pay to the applicant total compensation of Rs. 46,664/-along with interest at the rate of 9 % p.a. from the date of Claim Petition till full payment.

The respondents no. 2 and 3 have not challenged the Judgment and Award dated 2/04/2008. The respondent no. 3 deposited the entire awarded amount before the learned M.A.T.C. in satisfaction of the said Award. The applicant has already withdrawn the said amount. Present appeal is filed by the applicant challenging the quantum of compensation and praying for further amount of compensation of Rs. 2,12,336/-with interest on the total compensation of Rs. 2,59,000/-, at the rate of 12 % p.a. from the date of filing of the petition till payment.

Mr. Kakodkar, learned Counsel for the applicant, submitted that the applicant in his deposition had stated about the medical expenses of Rs. 15,000/-and that he had not retained the bills. He further submitted that the applicant had also stated in his affidavit-in-evidence about the expenditure of Rs. 5,000/-towards attendant and special diet and also about visiting O.P.D. of Goa Medical College at Bambolim for follow-up treatment for about 11 times and that he had gone eight times by taxi by paying Rs. 1,000/-per visit and 3 times by bus and total expenditure was about Rs. 10,000/-. He submitted that the O.P.D. card was produced on record and that number of visits are recorded in the same. According to him, some guess work could have been done. He pointed out that no compensation has been awarded by the learned M.A.C.T. on the above counts. He urged that proper amount of compensation be granted towards the said expenses. He further submitted that towards pain and sufferings, only an amount of Rs. 5,000/-has been granted which is much on a lower side. He, therefore, urged that the amount of compensation be enhanced.

On the other hand, Mr. Netravalkar, learned Counsel for the respondent no. 3, submitted that the applicant had sustained a simple fracture to right leg and there was no permanent disability at all. He further submitted that no evidence of whatsoever nature except the oral testimony of AW1, was produced by the applicant to establish the expenditure towards medicines, attendant, transport, etc. He submitted that in the circumstances above, the learned M.A.C.T. has rightly awarded the amount of Rs. 5,000/-towards pain and sufferings; Rs. 39,564/-towards loss of income and Rs. 2,100/-towards head of other expenses. He, therefore, urged that no interference with the impugned judgment and order is called for.

Mr. Afonso, learned Counsel for the respondent no. 6, submitted that the respondent no 6 has not been held to be responsible to compensate the applicant.

I have perused the original record and proceedings of Claim Petition No. 66/2007 and considered the submissions advanced by the learned Counsel for the parties.

There is no dispute that the alleged accident had occurred due to rash or negligent driving only of the truck bearing registration No. GA-02/T-6672 by respondent no. 1. There is also no dispute that the said truck was owned by respondent no. 2 and insured at the relevant time with respondent no. 3. AW1 stated in his affidavit-in-evidence that he sustained grade I compound fracture to lower 1/3rd right tibia fibula on account of the said accident. Though he further added that the said injury caused permanent disablement, that was not true. AW4, Dr. Shivanand Bandekar had examined the applicant and found that he had sustained compound fracture of tibia fibula of the right leg without neuro vascular deficit. He specifically stated that on 01/08/2007, he had examined the applicant for evaluation of percentage of permanent disability and had found that the applicant had united fracture, tibia fibula with implant in situ with full functional recovery and hence, percentage of permanent disability resulting from that injury was nil. AW4 specifically stated that there may be no effects of the injury suffered by the applicant, in the normal course and even during the advanced stage, the applicant will have no difficulty at all. Hence, no permanent disability was sustained by the applicant.

In his affidavit-in-evidence, the applicant stated that he sustained Grade I Compound fracture, lower 1/3rd , right tibia-fibula and was admitted to Goa Medical College Hospital from 23/10/2006 to 13/11/2006 and spent Rs. 15,000/-approximately for medicines, Rs. 100 per day for attendant and Rs. 5,000/-for special diet. He also stated that after discharge, he went to Hospital eight times by taxi for follow-up treatment and paid Rs. 1,000/-as taxi fare each time and three times by bus and that the expenditure for transport was about Rs. 10,000/-. AW2 had acted as one of the panch witnesses to the panchanama of the scene of accident and sketch; AW3 was an eye witness; AW4, was the doctor who had examined AW1 and AW5 was the Deputy Manager (Human and Resources) in M.R.F. It is pertinent to note that there was absolutely no evidence either documentary or oral, except the testimony of AW1 to establish the above expenditure. So also, no transport bills issued by any taxi driver had been produced by the applicant. Admittedly, Goa Medical College Hospital is a Government Hospital and it cannot be expected that there would be any charge for treatment and medicines. Be that as it may, AW4, Dr. Shivanand Bandekar, the head of the department of Orthopedic Surgery at Goa Medical College, Bambolim was examined by the applicant as AW4. He did not state that any medicines were prescribed and were brought personally by the applicant, at his own costs. There was no explanation as to why the attendant, if any was there, had not been examined. There was also no evidence as to what kind of special diet was taken by the applicant. No doubt, the records of Goa Medical College revealed that the applicant had visited OPD for follow up treatment. But there was nothing to prove as to what were the expenses, if any. The learned M.A.C.T., therefore, rightly held that the applicant was not entitled to compensation under the heads of medical expenses, attendant charges, special diet and transport expenses, but he would be entitled to compensation amounting to Rs. 2,100/-generally under the head of other expenses.

As rightly held by the learned M.A.C.T. since the applicant did not sustain any permanent disablement, there was no loss of earning capacity or loss of future income. Since the applicant had sustained grievous injury in the form of fracture to his right leg, towards pain and sufferings, the learned M.A.C.T. has awarded an amount of Rs. 5,000/-as compensation which in my view, is reasonable, considering the nature of the injury.

AW1 stated that he was working for M.R.F. since October 2006 and that he was absent for work as from 23/10/2006 to 23/05/2007 and since he was on probation, was not paid salary for that period. The evidence of AW5, Shri Sharad Chodnekar, the Deputy Manager (Human and Resources) in M.R.F., revealed that the applicant was working as Operator under No. 03758 in Department No. 327 of the said Company. AW5 confirmed that the probationary appointment order issued by the Company was the same which is at Exhibit 37. He also confirmed that the pay slip at Exhibit 54 was issued by his Company to the applicant. He deposed that gross salary of the applicant for the month of October, 2006 was Rs. 6,594/-and that the applicant was not on duty from 23/10/2006 till 23/05/2007 on account of the accident. AW5 stated that the applicant was not paid salary for the said period of absence. The above evidence of AW5 was not at all shaken in the cross-examination. The learned M.A.C.T., therefore, held that the applicant was entitled to be compensated at the rate Rs. 6,594/-per month for a period of 6 months which comes to a total of Rs. 39,564/-.

Respondents no. 2 and 3, jointly and/or severally, have been directed to pay to the applicant the total amount of Rs. 46,664/-as compensation along with interest at the rate of 9 % p.a. from the date of petition till the date of payment. In my view, the above compensation awarded by the learned M.A.C.T. is just and reasonable and no interference with the same is called for. No case is made out for further enhancement in compensation.

In the result, the appeal is dismissed.